Kenneth W. Ross v. Acadian Seaplants, LTD.
206 A.3d 283, 2019 ME 45 (2019)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Rockweed that is attached to and growing in the intertidal zone is the private property of the adjacent upland landowner and is not subject to a public right of harvest under the public trust doctrine. The public's rights of fishing, fowling, and navigation do not encompass the commercial harvesting of marine plants attached to privately owned land.
Facts:
- Kenneth W. Ross, Carl E. Ross, and Roque Island Gardner Homestead Corporation (collectively, Ross) own coastal property on Cobscook Bay in Maine.
- Rockweed, a species of seaweed, is a plant that grows on rocks and ledges in the intertidal zone by attaching itself with a structure called a holdfast.
- Acadian Seaplants, Ltd. (Acadian) is a commercial entity that harvests rockweed from the intertidal zone in Maine for use in various products.
- Acadian operates from skiffs during mid-tide and uses specially designed cutting rakes to harvest the rockweed.
- Acadian harvested rockweed that was attached to the intertidal land owned by Ross without securing Ross's permission.
Procedural Posture:
- Kenneth W. Ross and other landowners sued Acadian Seaplants, Ltd. in the Maine Superior Court (Washington County), a court of first instance.
- Ross's complaint sought a declaratory judgment establishing their ownership of the rockweed and an injunction to stop Acadian's harvesting.
- Acadian filed a counterclaim seeking a judgment declaring that harvesting rockweed is a public right under the Colonial Ordinance as a form of "fishing" and "navigation."
- The parties filed cross-motions for summary judgment based on a joint statement of stipulated facts.
- The Superior Court granted summary judgment for Ross on their declaratory judgment claim and on Acadian's counterclaim.
- Acadian, the defendant and appellant, appealed the Superior Court's judgment to the Maine Supreme Judicial Court, the state's highest court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the public have a right under the public trust doctrine to harvest rockweed that is attached to and growing in the privately-owned intertidal zone, as a form of "fishing" or "navigation"?
Opinions:
Majority - Hjelm, J.
No. The public does not have a right under the public trust doctrine to harvest rockweed attached to the privately-owned intertidal zone. The court analyzed the claim under two frameworks for defining public rights in the intertidal zone. First, under a strict but "sympathetically generous" interpretation of the public's rights of "fishing, fowling, and navigation," harvesting rockweed does not qualify. It is not "navigation" because the primary purpose is extraction, not transit. It is not "fishing" because rockweed is a plant, and fishing has consistently been interpreted to involve the taking of marine animals like fish, shellfish, and worms. Second, even under a broader common law approach that seeks a "reasonable balance" between public and private interests, harvesting rockweed is not a public right. This activity imposes an "additional burden" on the private landowner by taking a valuable resource that is physically attached to the land, which is qualitatively different from merely passing over the land. This conclusion is consistent with prior case law prohibiting the public from taking other resources like mussel manure or ice from private intertidal lands.
Concurring - Saufley, C.J.
Yes, I agree with the result that harvesting rockweed is not a public right. However, the court should have taken this opportunity to explicitly overrule the "constrictive trilogy" of "fishing, fowling, and navigation" established in the precedent case of Bell v. Town of Wells (Bell II). This narrow test has led to strained legal reasoning and has improperly restricted public use of the intertidal zone for reasonable activities like walking on the beach. While a broader common law standard of reasonable public use should be adopted, even under that more flexible standard, the act of taking attached flora from a private landowner's property would not be a protected public right. The concurrence therefore agrees with the outcome but not with the majority's decision to leave the restrictive Bell II framework intact.
Analysis:
This decision solidifies the private property rights of upland landowners over resources physically attached to their intertidal lands, clarifying that the public trust doctrine does not extend to the commercial harvesting of stationary marine plants. The ruling narrows the legal definition of "fishing" under Maine common law, creating a clear distinction between mobile fauna (fish, shellfish) and attached flora (seaweed). The case also highlights the deep, ongoing division within the Maine judiciary over the proper framework for analyzing public rights in the intertidal zone—the strict "fishing, fowling, navigation" trilogy versus a more flexible, common-law balancing test—which will likely lead to future litigation over other uses of the intertidal zone.
Unlock the full brief for Kenneth W. Ross v. Acadian Seaplants, LTD.